Can the lawyer who drafted a will represent the estate in a will contest and also testify about the testator's competency or undue influence?

Plain-English summary

The committee addressed whether the lawyer who drafted a will may represent the beneficiaries and executor in a contest where the drafting lawyer will be a witness on the testator's competency, or where undue influence of the lawyer may be an issue. It answered yes.

The analysis ran through DR 5-101(B), which bars a lawyer from accepting employment in litigation where the lawyer or a lawyer in the firm may be called as a witness, subject to four exceptions. The fourth exception allows the lawyer to accept the employment and testify where refusal would work a substantial hardship on the client. The committee drew on ABA authority (the 1941 opinion it cites) that an attorney is not necessarily barred when a partner will be a material witness, particularly where long and intimate familiarity with the matter makes withdrawal prejudicial, or where the testimony relates to the lawyer's professional duties. It then relied on Kentucky decisions, Adams v. Flora, Duncan v. O'Nan, and Stegman v. Miller, holding that the circumstances surrounding the drafting of a will are important enough in a will contest that an attorney who represented the testator may testify about that matter even while representing the estate.

The committee expressly declined to address the legal question of KRS 421.210, noting it is not authorized to answer questions of law. Its conclusion was that the drafting lawyer may both represent the beneficiaries and executor and testify as a witness on the testator's competency or undue influence, and that, where applicable, a partner or associate of the drafting attorney may be the trial attorney in the contest.

Currency note

This opinion was issued in 1980 under Kentucky's former Code of Professional Responsibility (in effect 1971 to 1990), before the Kentucky Bar Association's 1990 adoption of the Rules of Professional Conduct (SCR 3.130) and the substantial 2009 revisions to those rules. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against the current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Can the lawyer who drafted a will both represent the estate and testify in the will contest?

A: Yes. The opinion concluded the drafting lawyer may represent the beneficiaries and executor and testify about the testator's competency or undue influence.

Q: Why doesn't the lawyer-as-witness rule disqualify the drafting lawyer?

A: DR 5-101(B) has a substantial-hardship exception, and Kentucky decisions (Adams v. Flora, Duncan v. O'Nan) treat the drafting lawyer's testimony about the will as proper even while representing the testator's estate.

Q: Can a partner or associate try the case instead?

A: Yes. The committee said that, where applicable, a partner or associate of the drafting attorney may serve as the trial attorney in the will contest.

Q: Did the committee address the competency statute, KRS 421.210?

A: No. It said the Ethics Committee is not authorized to answer questions of law and refused to comment on KRS 421.210 and its application.

Background and rules framework

The opinion applies the lawyer-as-witness rule, DR 5-101(B), with its substantial-hardship exception, in the will-contest setting. The modern analog is Model Rule 3.7 (lawyer as witness), which generally bars a lawyer from acting as advocate at a trial where the lawyer is likely to be a necessary witness, subject to exceptions, while Model Rule 1.7 governs any related conflict. The committee treated the drafting lawyer's familiarity with the will's execution as the kind of matter that supports testimony despite the advocacy role.

Citations and references

Rules of Professional Conduct:

• DR 5-101(B) (lawyer as witness, with four exceptions); modern analogs Model Rule 3.7 and Model Rule 1.7

Statutes:

• KRS 421.210 (referenced by the committee, which declined to opine on it as a question of law)

Cases:

• Adams v. Flora, 445 S.W.2d 420 (Ky. 1969), drafting attorney may testify in a will contest while representing the estate
• Duncan v. O'Nan, 451 S.W.2d 626 (Ky. 1970), proper for the will's draftsman to testify in a contest of that will
• Stegman v. Miller, 515 S.W.2d 244 (Ky. 1974), general discussion of the area

Other opinions cited:

• ABA Formal Opinion 220 (representation where a partner is a material witness)

See also

• KBA Ethics Op. E-321: Lawyer Arguing Own Ineffectiveness
• KBA Ethics Op. E-230: FOP Counsel and Criminal Defense

Source

• Landing page: https://kybar.org/For-Members/Rules-Ethics-Information/Ethics-Opinions
• Original PDF: https://kybar.org/Portals/0/Admin/Ethics%20Opinions/KBA_E-232.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

KENTUCKY BAR ASSOCIATION
Ethics Opinion KBA E-232
Issued: May 1980

This opinion was decided under the Code of Professional Responsibility, which was in effect from 1971 to 1990. Lawyers should consult the current version of the Rules of Professional Conduct and Comments, SCR 3.130 (available at http://www.kybar.org), before relying on this opinion.

Question:

May a lawyer who drafted a will represent the beneficiaries and executor under the will where the lawyer who drafted the will will be a witness as to the competency of the testator and/or undue influence of the lawyer may be an issue in the lawsuit?

Answer:

Yes.

References:

DR 5-101(B); ABA Formal Opinion 220; Duncan v. O'Nan, 451 S.W.2d 626 (Ky. 1970); Adams v. Flora, 445 S.W.2d 420 (Ky. 1969); Stegman v. Miller, 515 S.W.2d 244 (Ky. 1974)

Opinion

Disciplinary Rule 5-101(B) provides that a lawyer shall not accept employment in contemplated or pending litigation if he knows or if it is obvious that he or a lawyer in his firm may be called as a witness. There are four exceptions to this rule. The fourth exception provides that he may accept employment and testify if the refusal would work a substantial hardship upon the client.
In 1941 the American Bar Association was called upon to answer a similar Question and stated as follows (ABA Informal Opinion 220):
It is not necessarily unethical for an attorney to represent a client when his partner will be a material witness in the case. He may not do so if he will be required to attack the testimony of his partner. He should not accept employment if he then knows that his partner will necessarily be a witness as to matters not relating to his professional duties. However, where the attorney's long and intimate familiarity with the matter in litigation makes his withdrawal prejudicial to the client's case, or where his partners testimony relates to matters occurring in the course of his professional duties, he need not necessarily withdraw.
In Adams v. Flora, 445 S.W.2d 420, 422 (Ky. 1969), the highest court in our Commonwealth stated:

In our opinion the circumstances surrounding the drafting of a will are of such importance in a will contest that it is proper for an attorney who represented the testator to testify concerning this matter even though he represents the testators estate.
In Duncan v. O'Nan, 451 S.W.2d 626 (Ky. 1970), the court stated that it was "proper for an attorney to testify in a will contest case where he is the draftsman of the will under attack even though he represents the testator's estate." In Stegman v. Miller, 515 S.W.2d 244 (Ky. 1974), the court discussed the area in generalities.
The Ethics Committee is not authorized to answer questions of law; therefore, we refuse to comment on KRS 421.210 and its application.
It is the opinion of the Ethics Committee that a lawyer who drafted a will may represent the beneficiaries and executor under the will and testify as a witness as to the testator's competency and/or undue influence. In addition, it is the Ethics Committee's feeling, that where applicable, a partner or associate of the attorney who drafted the will may be the trial attorney in the will contest suit.

Note to Reader
This ethics opinion has been formally adopted by the Board of Governors of the Kentucky Bar Association under the provisions of Kentucky Supreme Court Rule 3.530 (or its predecessor rule). The Rule provides that formal opinions are advisory only.